How long does it take to create a prescriptive easement in Delaware?

20 years of open, notorious, continuous and adverse use is the period generally applied in Delaware, commonly cited to Del. Code Ann. tit. 10, § 7901; common law prescription. The clock only runs while the use is visible and without the owner's permission; written permission restarts it.

Can someone take ownership of my land in Delaware, not just a right to cross it?

A prescriptive easement only creates a right of use after 20 years. You keep title. Ownership claims run through Delaware's separate adverse possession rules, which require possession of the strip itself rather than a shared use of it.

What has to be proven for an easement claim in Delaware?

Twenty years of adverse, continuous use is the accepted period. Land owned by the state or a municipality generally cannot be taken by prescription.

Where are easements recorded in Delaware?

Easements are recorded at the county level. For the Delaware counties we cover that means New Castle County Recorder of Deeds. 1 of those counties publish a free public parcel viewer you can check before you order title work.

Does a Delaware title commitment list every easement on the property?

Schedule B lists the recorded exceptions the title company found, which covers most utility, access and drainage easements. It will not show a prescriptive easement created by 20 years of use with nothing on paper, and it rarely tells you where on the lot the easement actually sits. That takes the recorded instrument plus a survey.

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Delaware prescriptive easement law

Q: Which Delaware law actually sets the clock?

10 Del. C. § 7901. In its own words: "No person shall make an entry into any lands, tenements, or hereditaments, but within 20 years next after the person's right or title to the same first descended or accrued." We transcribed that from the official text on September 7, 2026.

Q: What does it cost to record an easement in Delaware?

Delaware records with the Recorder of Deeds. A statutory base fee plus county surcharges: county schedules show roughly a $36 document fee (state, county and technology components) plus about $10 per page including the first.

Del. Code Ann. tit. 10, § 7901; common law prescription

Prescriptive period

20 years

What actually decides a claim here

Twenty years of adverse, continuous use is the accepted period.
Land owned by the state or a municipality generally cannot be taken by prescription.

The rule that matters most

Delaware's twenty-year prescriptive period comes from the real-actions limitations statute rather than a dedicated easement statute, and Delaware courts demand clear and convincing proof of adversity.

Delaware has no separate prescriptive-easement statute; courts borrow the twenty-year period from the state's real-actions limitations law, the same statute that underlies adverse possession of land. A claimant must show open, notorious, continuous, and exclusive use under a claim of right for the full twenty years, and Delaware decisions have held claimants to a demanding, clear-and-convincing standard rather than a bare preponderance.

What a claimant must prove in Delaware

The claimant must prove adverse use by clear and convincing evidence. Delaware courts have rejected prescriptive claims where the record showed only ordinary neighborly travel rather than conduct that put the owner on notice of a hostile claim.

Open and notorious use

The use of the road, path, or utility line must be visible enough that a reasonably attentive owner would learn of it.

Continuous, uninterrupted use for twenty years

The claimed use must persist without a material gap for the full statutory period drawn from the real-actions statute.

Adverse use under a claim of right

The claimant must show conduct inconsistent with the owner's right to exclude, not a favor extended between neighbors or family.

Clear and convincing proof

Because Delaware holds claimants to this heightened standard, conflicting or ambiguous testimony about the origin of the use tends to defeat the claim.

What can break the claim

Delaware's heightened clear-and-convincing standard means ambiguous or thin testimony about how the use began is often fatal to the claim.
A right of way granted informally by a prior owner, even decades ago, remains permissive unless the claimant shows a later, unmistakable assertion of an adverse right.
Family relationships between neighboring owners can make courts especially skeptical that use was hostile rather than accommodated.
A driveway dispute framed as a right-of-way should not be mixed with a claim to title in the strip of land itself, which follows a different adverse-possession analysis under the same twenty-year statute.

Worked homeowner example

A shared garage driveway near Lewes

Facts: A homeowner has driven across the rear of a neighboring lot to reach a detached garage for twenty-two years. The neighbor never objected, but the two families have always been on friendly terms and occasionally shared plowing costs.

How the rule applies: The twenty-two years clears the statutory period, but the friendly, cooperative relationship and shared costs are the kind of facts Delaware courts have found consistent with permissive accommodation rather than a hostile claim, especially under the clear-and-convincing standard.

Practical next step: Document the earliest use, any statements about a right to cross (rather than a favor), and whether either family ever paid for or acknowledged an easement, before assuming the friendly history helps the claim.

A published Delaware example

Bertrand v. Hill (173 A.2d 615 (Del. 1961))

A landowner began driving across a neighboring lot to reach a garage, relying on more than twenty years of use by prior occupants of the property as the basis for a claimed prescriptive right of way.

Outcome: The Delaware Supreme Court affirmed judgment for the landowner being crossed, holding that the claimant had not presented clear and convincing proof of the adverse use required to establish a prescriptive right.

Why it matters: Long use alone does not establish a prescriptive easement in Delaware; the claimant must meet a clear-and-convincing standard on every element, including adversity.

Read the published decision

The Delaware law in its own words

Delaware writes the rule into its code at 10 Del. C. § 7901. Read the operative sentence closely: the language a court applies is the statutory language, not a summary of it, and small phrases such as "under a claim of right" or "paid all the taxes" decide real cases.

“No person shall make an entry into any lands, tenements, or hereditaments, but within 20 years next after the person's right or title to the same first descended or accrued.”
10 Del. C. § 7901 · checked 2026-09-07

Open 10 Del. C. § 7901

Recording an easement in Delaware

Delaware records at the Recorder of Deeds. A statutory base fee plus county surcharges: county schedules show roughly a $36 document fee (state, county and technology components) plus about $10 per page including the first. See the fee authority.

Delaware records real property instruments with the recorder of deeds in the county where the land lies. An easement agreement should include a metes-and-bounds or plotted description, width, and permitted uses, and should be checked against that county recorder's current filing requirements.

Primary sources for this guide

10 Del. C. §§ 7901, 7902 - Delaware twenty-year real-actions limitations statute
9 Del. C. § 3556 - Delaware recorder of deeds authority

Need the document itself? Follow the step-by-step records walkthrough to pull the recorded easement on your parcel from free county, state, and federal sources.

How Delaware compares with the rest of the country

Delaware runs a longer clock than most of the country: 20 years against a 15-year national median, so use that started recently is unlikely to have ripened into a prescriptive right yet. 21 states in total use a 20-year period. Nationally the periods run from 5 to 30 years, and 27 states are quicker than Delaware.

Easements you actually see on Delaware title work

Across the Delaware counties we publish guides for, these are the exceptions that show up most often in Schedule B: Access easements serving flag lots in unincorporated areas, County sewer and stormwater management easements, Delmarva Power distribution easements, Drainage and tax ditch rights of way. The recorded instrument controls the width and location. A plat note or a county parcel viewer is only a starting point.

County-by-county recording rules in Delaware

Easements are recorded county by county, and the filing rules are set by the office that takes the document. Not by the state. Open a county to see who records there, how that office structures its fees, what makes a document get rejected, and where the free official index and parcel viewer live.

Look up Delaware county records to jump straight to a county page with its recording rules, typical strip widths in feet, and the steps for disputing an easement.

Browse free Delaware easement records and parcel GIS sources

Delaware easement questions

Read the official Delaware code Estimate the value impact Check a property in Delaware

Common questions from homeowners

Related terms

prescriptive easement

easement by necessity

right of way

encroachment

General educational reference only. Prescription periods and their exceptions change, and several states set the period by case law rather than by statute. Read the linked official code and consult a licensed attorney in that state before relying on any of it.